United States v. Rome

CRAWFORD, Judge

(dissenting):

Military judges, like their civilian counterparts, are entitled to deference from the appellate courts when ruling on the question of challenges for cause.

The question of “partiality” of a court member is “plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). Consequently, “the trial court’s resolution of such questions is entitled, even on direct appeal, to ‘special deference.’” Id. at 1038, 104 S.Ct. at 2892. This “determination is essentially one of credibility, and therefore largely one of demeanor” that should be determined by the trial judge. Id. Judges are in the best position to evaluate both the verbal and non-verbal communication, including the raised eyebrow, the hesitancy, and movement as to whether the court member is being honest during voir dire. The judge in this case recognized that he had to make the credibility decision.

United States v. Minyard, 46 MJ 229, 234 (1997)(Crawford, J., dissenting). In this instance, the judge was in the best position to determine, based upon his observations in the prior case as well as this one, whether a challenge for cause was justified.

The other case mentioned by the judge is Looney, 9500433 (Army Ct.Crim.App.). In that case, the same judge as in appellant’s case ordered Looney released from pretrial confinement, even though Looney had been charged with murdering his roommate by piercing his heart with a pocket knife. LTC M, a member in appellant’s case, was not happy that Looney had been released from pretrial confinement. He complained to the non-commissioned officers (NCOs) who served as Looney’s character witnesses in support of Looney’s release from confinement. His actions were challenged as unlawful command influence by defense counsel for Looney, who was also trial defense counsel for appellant. The military judge, to remedy any impact that LTC M’s action might have had, allowed the defense to call as many character witnesses as it wanted but refused to allow the Government to cross-examine these witnesses or call its own character witnesses in rebuttal. This remedy applied to the merits of the case and to sentencing. Looney was found guilty of murder under Article 118(3), UCMJ, 10 USC § 918(3), and was sentenced to a dishonorable discharge, 10 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade.

LTC M served as a court-member in appellant’s trial after extensive voir dire. He testified under oath that he could decide appellant’s case based on the evidence and would not hold the defense counsel’s actions in the Looney ease against her. When asked about defense counsel in the Looney case, LTC M stated, “I know her only from courts-martial, not outside of that. She did a good job, in my opinion, of supporting her client.” LTC M indicated that his dealings with the *471Looney case would not affect his ability to be impartial and fair in appellant’s case. The same military judge who found that LTC M exercised unlawful command influence in the Looney case observed LTC M’s demeanor, listened to his testimony, and found him credible and able to sit as an impartial member at appellant’s court-martial. The military judge’s decision was not a “clear abuse of discretion.” United States v. White, 36 MJ 284, 287 (CMA1993).

While the majority denies invoking the theory of implied bias to establish per se rules for challenges for cause, the result of its recent decisions appears to do just that. In this case, the majority focuses on LTC M, who was “grilled” by defense counsel and “personally and professionally embarrass[ed]” in the Looney case. 47 MJ at 469.

In effect, the majority applies the liberal-grant mandate at the appellate level rather than at the trial level. While we have indicated that the implied-bias rule is to be rarely invoked, this Court has frequently applied the rule to set aside convictions in the last two terms. While at first blush the majority action may appear to be laudible in terms of public perception, it raises serious questions about the standards to be employed in the military justice system. Certainly, undermining these standards does not enhance public perception or confidence in the military justice system. Invocation of the doctrine of implied bias should be a rare exception when a “juror is an actual employee of the prosecuting agency, [when] the juror is a close relative of one of the participants in the trial or the criminal transaction, or [when] the juror was a witness or somehow involved in the criminal transaction.” Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring).

Admittedly, there are differences between courts-martial with court members and jury trials with civilian jurors. These differences include the purpose of the military justice system, the type of individuals selected to be court members pursuant to Article 25(d)(2), UCMJ, 10 USC § 825(d)(2), and the protection given to general verdicts. See, e.g., United States v. Hardy, 46 MJ 67 (1997). Selection of court members “by reason of age, education, training, experience, length of service, and judicial temperament” differs significantly from random selection of civilian jurors by voter-registration or driver’s-license lists. Art. 25(d)(2). A military panel of court members has often been called a “blue ribbon” panel due to the quality of its members. See Jesse Birnbaum, A New Breed of Brass: From the Ashes of Vietnam, the Pentagon Has Shaped a Sophisticated Military that Speaks Well and Fights Smart, 1991 WL 3118757, Time Magazine 58 (March 11,1991); David Ger-gen, Bringing Home the “Storm”; What the Victorious American Military Could Teach the Best of Us, 1991 WL 2142956, Washington Post (April 28, 1991). Arguably, this difference is such that invocation of the doctrine of implied bias should be even rarer in the military.

United States v. Youngblood, 47 MJ 338, 346 (1997)(Crawford, J., dissenting).

But if the doctrine does apply, what are the parameters of the majority’s implied-bias rule? How is it to be applied by the trial judge? I suggest that the majority’s invocation of the implied-bias theory is too vague to be workable. Compare United States v. Dale, 42 MJ 384 (1995), with United States v. Fulton, 44 MJ 100 (1996); compare United States v. Minyard, 46 MJ 229 (1997), with United States v. Lavender, 46 MJ 485 (1997).

In Dale, the majority held that a captain who supervised misdemeanor and other non-felony investigators, i.e. — “non-OSI (Office of Special Investigations) investigations,” could not sit as a panel member under an implied bias theory. This captain supervised the security work force, such as traffic officers and gateguards. He also sat in on presentations of disciplinary statistics called the “cops and robbers” meeting, the purpose of which was to “brief the base commander in those areas.”

However, in contrast, this Court held in Fulton that a major was not disqualified as a member, even though he was the Chief of *472Security Police Operations for the Pacific Air Forces, had both a bachelor’s and master’s degree in criminal justice, had been a security policeman, and had been the victim of a burglary and larceny.

In Minyard, this Court held that it was reversible error not to sustain a challenge for cause against Major B. The defense argued that Major B was the “wife of one of the case agents or the assistant case agent.” Not surprisingly, she testified under oath that her husband, who was an investigator on a major installation, had said over the phone, “More money?” When she asked her husband about the comment, he said it was a case he was working on but did not identify the case or the individual involved. Her husband did not testify at the Article 321 and did not testify at trial.

The relationship of Major B’s husband to the Minyard, case was based only upon argument by counsel and the off-handed comment about “more money” while her husband was on the phone. Major B testified under oath that she had no association with the case, no professional association with the OSI, had heard no details of the case, did not know that her husband was involved with a case, and had not formed an opinion on the outcome of the case. In addition, the appellant in Minyard readily admitted having used his roommate’s ATM card. The only issue was whether appellant had permission from his roommate. Even so, the majority of this Court held that there was a clear abuse of discretion in not. sustaining the challenge for cause.

A subjective “I know it when I see it” approach to the theory of implied bias by appellate courts can lead to inconsistent results, which leaves the bench and bar without clear guidelines. An example of this can be seen in a comparison of the majority’s rationale in Minyard with its rationale in Lavender. In Lavender, money was taken from the purse of one of the panel members, Major P, during a recess. The panel consisted of six officers and six enlisted members. Major P informed the president of the panel in the presence of the others. While Major P said that she could sit on the case, she was excused by the military judge after a challenge for cause. The president of the panel also volunteered that he thought Captain S was emotionally affected by the incident. The judge granted a challenge against her as well. This Court, in effect, held that the implied-bias doctrine was not applicable because the public would not be concerned with the other members remaining on the panel.

In reaching its conclusion in all of these cases, the majority applied a subjective, public perception rule. Admittedly, few accused would want to be judged by a court member who was appointed by the person who forwarded charges to trial and, in the event of a guilty verdict, who would also decide whether to approve the findings and sentence. Taken to its logical conclusion, under the majority’s expansive test, no servicemember could sit as a court member at a court-martial because all court members are appointed by the convening authority.

This Court must always remember that the military criminal justice system is a worldwide system of justice administered by the armed forces and responsible to civilian authority. Commanders are entrusted with the mission of carrying out the civilian leadership’s direction to assure that this country remains a super-power and maintains a strong national defense. In order to do so, commanders must ensure that servicemem-bers are responsive to orders. Discipline is an integral part of this mission. Commanders and senior NCOs are responsible for maintaining discipline, and they should be trained on how to do so.

Viewing the majority’s invocation of the implied bias theory in this and other cases in a broader context, one must now question whether commanders and senior NCOs can ever serve as court members. Even the random selection of court members would not resolve this matter to the majority’s satisfaction. It has become most difficult to predict the alpha and omega of the majority’s implied-bias theory. If the majority continues to apply the doctrine of implied bias in this manner, they will, I fear, further confuse *473the field and erode confidence in the appellate process.

. UCMJ, 10 USC § 832.